010: Estate Planning and Family Law with Jeremy Byellin

Attorney Talk: Casual Conversations About the Law.

In this week’s episode of Attorney Talk, Ken Thayer interviews Jeremy Byellin, who is an attorney that practices estate planning and family law in Minnesota. During the show, Ken and Jeremy discuss probate, wills for married couples, trusts, power of attorney, estate planning, and family law.

Main Questions Asked:

• How does family law tie in with estate planning?
• What is probate?
• Do you come across circumstances where a spouse didn’t know that the will existed and wasn’t happy with where the property is going?
• What happens if a person in a married couple passes and doesn’t have a will?
• What is a ‘trust’ and ‘power of attorney’?
• What happens to the ‘transfer on death deeds’ if a property still has a mortgage on it?
• What is the information documentation you need from clients to make the process smoother?
• Where do you direct your clients to go to regarding financial ramifications on these instruments?
• How is family practice handled in Minnesota?
• What is the dynamic of your firm, and do you have a support staff?
• What are the biggest misperceptions of family law divorce attorneys?

Key Lessons Learned:

• When you look at estate planning, it is usually a family union coming to the law office in tact; however, family law is more about breaking up the unit.

Estate Planning

• Estate planning involves wills, trusts, power of attorney, and any documents that are drafted in contemplation of death or incapacity to prepare for what happens to your property when you are no longer able to make those decisions yourself.
• The other side of estate planning is litigation, which is probate. After someone has died, you go through the courts to figure out what happens to their property.
• There are two sides to estate planning: 1) The transactional side with documentation and 2) The litigation side, which is probate.

Probate

• This is when someone dies and the property goes into the deceased person’s estate.
• In some circumstances, complex probate can take years, but in most cases, it is about establishing if there was a will, who is the representative, and what property is in the estate that needs to get paid out to creditors, heirs, and other named parties in the will.
• If the deceased person doesn’t have a will, then most state laws have their own default will that stipulates how property will be distributed to the heirs.

Wills for Married Couples

• If a spouse doesn’t agree with whom property has been left to in the will, the best option from a legal standpoint is to challenge the will stating that the person who made it wasn’t in sound mind.
• There are provisions that take care of a surviving spouse in situations where there is no will. The court will still need to be involved in order to execute those provisions and ensure the funds and property go where it is supposed to under state law.

Trusts

• A trust is an instrument to be able to put property to be held in a legal entity called ‘the trust.’ This is a way to take property out of ones hands so it’s not in the estate when the person dies.
• A trust is a way of bypassing the probate process for certain pieces of property such as real estate.
• Trusts have fallen out of favor in Minnesota to some degree because of the new instrument called ‘transfer on death deeds.’ This is where a property is automatically transferred to the nominated party upon death subject to any leans such as a mortgage.

Power of Attorney

• This is a document where you can name another person who can take legal action and sign documents on your behalf.
• The power of attorney ceases to exist when the principal dies.
• The controlling medical treatment is via medical directives, which are similar to a power of attorney.
• Power of Attorney doesn’t automatically trigger as soon as the person is incapacitated.

Family Law

• Family law is one of the most contentious areas of law.
• The nature of family law is that things are going to happen after hours, on weekends, and holidays.
• In addition to the legal aspect of the role, there is a lot of counseling.
• The rules of evidence don’t mean as much in family law as they do in every other area of law. People often try to get hearsay crammed into affidavits.
• In Minnesota, the property that was acquired during the marriage is split between the parties if deemed marital property. Exceptions include if family inheritance was acquired by one of the spouses during the marriage.
• Property acquired before the marriage is usually safe unless it gets comingled with marital assets.
• Pre-marriage debt is handled the same way as property.
• A lot of counties in Minnesota have a system called ‘early neutral evaluation’ that determines custody and parenting time.
• Financial ‘early neutral evaluation’ is less common and only happens in divorces to determine distribution of marital property.

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Links to Resources Mentioned

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Byellin Law